{"id":6821,"date":"2012-05-10T18:27:17","date_gmt":"2012-03-14T09:07:45","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-03-14T09:07:45","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6821","title":{"rendered":"CA5: Where defendant is in jail and refuses consent, Randolph<\/em> doesn’t bar going to house to get consent from cotenant"},"content":{"rendered":"

Following CA7 (United States v. Reed<\/a>, 539 F.3d 595 (7th Cir. 2008)) and CA8 (United States v. Hudspeth<\/a>, 518 F.3d 954 (8th Cir. 2008) (en banc)) and not CA9 (United States v. Murphy<\/a>, 516 F.3d 1117 (9th Cir. 2008)), CA5 finds that an absent cotenant who refuses to consent is not what was contemplated in Randolph<\/a>. Defendant was in jail and refused to consent, so officers went to his house and got it anyway. [There is also a curtilage issue under Dunn.] United States v. Cooke<\/a>, 674 F.3d 491 (5th Cir. 2012):<\/p>\n

We agree with the Seventh and Eighth Circuits that the objection of an absent cotenant does not vitiate the consent of a physically present cotenant under Randolph. First, as both courts noted, Randolph self-consciously emphasized the importance of Randolph’s presence by repeatedly noting it when declaring and reiterating the holding. See Randolph<\/a>, 547 U.S. at 106, 114, 121, 122, 123. Justice Breyer’s concurrence confirms the importance of physical presence. Id. at 126 (Breyer, J., concurring). Second, the Randolph Court seemed to have structured the holding as an exception to the general rule of Rodriguez<\/a> and Matlock<\/a> that a cotenant may consent to the search of a residence, id. at 106, and that this exception was narrowly drawn along a “fine line.” Id. at 121-22. Third, although it is a close question, social convention normally allows for a visitor to feel invited into a home when invited by a physically-present resident, even if an absent cotenant objects to it, rather than the visitor’s assuming he is verboten forever until the objector consents.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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